Select Committee on Delegated Powers and Deregulation Eighteenth Report


6 May 1998

By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.



  1.    This Bill provides for a National Assembly for Wales and for the reform of Welsh public bodies. It is the first of the devolution bills to reach this House and therefore raises a number of new issues for the Committee. The Committee's usual role is to consider legislative powers which are delegated by Parliament to a Minister of the Crown. The underlying principle of this Bill, however, is that the Assembly will take responsibility for those executive functions currently exercised by the Secretary of State for Wales.

  2.    The Bill contains three classes of provision which come within the Committee's terms of reference. First, there are the powers conferred on Westminster ministers to legislate. Second, there are provisions transferring the exercise of existing legislative powers to the Assembly created by the Bill. Thirdly, there are new legislative powers conferred on the Assembly.

  3.    The powers conferred on Westminster ministers to legislate raise no new issues for the Committee and do not differ in principle from those in any other bill. We consider these powers in paragraphs 7-10 below.

  4.    The second category of power raises the new question of whether it is appropriate that a power granted by the Westminster Parliament but made subject to Parliamentary control should be transferred to the Assembly when the power will cease to be subject to Parliamentary control. The Committee considers that this is an issue for the House and that the Committee's function is to consider the effectiveness of the scrutiny process by the Assembly provided for in the Bill. Functions of a Minister of the Crown can be transferred to the Assembly by Orders in Council under clause 22 of the Bill (transfer of ministerial functions). The Welsh Office estimates that a large number of powers to make subordinate legislation will be passed to the Assembly by this means.[1] Such subordinate legislation will be scrutinised by the Assembly itself in accordance with procedures set out in clauses 65-68 of the Bill. We consider the adequacy of such scrutiny process in paragraphs 11-14 below.

  5.    The third category, the creation of new legislative powers to be exercised by the Assembly, raises the most difficult issues for the Committee. Our tentative view, which we recognise the House will wish to consider carefully, is that the Westminster Parliament will remain the supreme legislative body for Wales, and therefore in principle the grant of any new legislative powers to the Assembly (whether in the Bill or in future legislation) should be judged against similar criteria to those which the Committee applies when considering the propriety and ambit of the grant of delegated legislative powers to Ministers of the Crown.

  6.    In relation to each of the new powers conferred on the Assembly the Committee considered whether it is appropriate that the power should be delegated to that body and whether the Bill provides checks on the abuse of that power which make it appropriate that the power should be delegated when there will be no control by the Westminster Parliament over the exercise of the powers. We consider this further in paragraph 15 below.

"Westminster" powers

  7.    Powers are conferred on ministers by clauses 3, 11, 15(5), 17, 26, 37, 40, 50, 76(5), 84(6), 110, 117, 118, 131(4), 134(3), 137(4), 140(3), 141(5), 144, 145, 147, 150, 151, 153 and 158 (commencement) and by Schedules 5 (paragraph 2), 6 (paragraph 1) and 10 (paragraph 7 of the new Schedule 4 inserted in the Welsh Development Agency Act 1975 and paragraphs 11, 12, 13, 17, 19 and 20 of that Schedule). There are Order in Council powers in clauses 12, 22 and 31 and Schedule 6 (paragraph 34). The Welsh Office's memorandum explains the need for these powers and indicates how they will be used. Where the power is not subject to affirmative procedure it is subject to negative procedure (except for the commencement power which is, as is customary, not subject to Parliamentary control).

  8.    There are Henry VIII powers in the following clauses: 22 (transfer of ministerial functions), 31 (consultation about public appointments), 76 (witnesses and documents), 84 (loans to Assembly by Secretary of State), 98 (an extension of clause 22), 134 (abolition of the Development Board for Rural Wales), 140 (abolition of the Land Authority for Wales), 144 (abolition of Housing for Wales), 145 (accounts, audit and reports), 147 (transfer of functions of Comptroller and Auditor General) and 151 (power to amend enactments) and Schedule 7 (paragraph 34). While this is more than in any other bill which has come before the Committee, they all arise naturally out of the subject matter and are all subject to affirmative procedure. The Committee noted that this is, as far as it is aware, the first bill to contain provisions which, in effect, define Henry VIII provisions in order to make them subject to affirmative procedure - see clause 31(8) ("which contains provisions in the form of amendments or repeals of enactments contained in an Act") and the same words in clause 154(3)(b) and paragraph 34(3) of Schedule 7. There is no need for such a provision in relation to clause 22 as affirmative procedure applies to all Orders under that clause.

  9.    The Committee considered the Welsh Office's justification for all these powers and saw no need to draw the special attention of the House to any of them.

  10.    In regard to the non-Henry VIII powers, some are subject to affirmative resolution and others to the negative procedure. In each case the Committee considers that the parliamentary control provided for is adequate.

Transferred Powers

  11.    Clause 22 provides for the transfer by Order in Council of Ministerial functions to the Assembly. It is clear from clause 23(4) that it is intended to transfer powers to make subordinate legislation. The scale of the proposed delegation can be seen from the latest draft of the proposed Order in Council which has been circulated. These clauses also make it clear that the Assembly can only exercise transferred powers "in relation to Wales" and that the Minister may still exercise a transferred power in relation to Wales for European Community purposes (clause 23(4)). Clause 30 makes further provision about implementing community law and one consequence of this could be a widening of the Assembly's power to make subordinate legislation. The Committee noted in subsections (3) and (5) of that clause that the Parliamentary procedure which applies when a Minister is acting is disapplied when the Assembly acts. This is a particular instance of the general provision in clause 45: subsection (2) disapplies Parliamentary control where the Assembly makes the subordinate legislation (the only exception relates to the Statutory Orders (Special Procedure) Act 1945 - see subsections (3)(e) and (6)).

  12.    Clause 59 requires the Assembly to establish a subordinate legislation scrutiny committee. Its role will presumably be very similar to that of the Joint Committee on Statutory Instruments. Clause 60 makes further provision about the scrutiny committee.

  13.    The vital provision about the making of Assembly subordinate legislation is Clause 67. Of particular importance are the requirements of laying in draft and approval by resolution (subsection (2)) and the requirement of a prior report from the scrutiny committee (subsection (5)(a)). Clause 65 requires the standing orders of the Assembly to provide procedures relating to subordinate legislation and clause 66 requires the procedures to secure that an appraisal is carried out as to the likely costs and benefits of complying with any proposed subordinate legislation. Clause 68 allows the procedures to provide for legislating in a case of urgency. "If the executive committee determines that, in the particular circumstances, it is not reasonably practicable to comply with" the requirements of clause 67(2) (affirmative approval of draft), clause 66(3) (consultation and regulatory appraisal) and clause 67(5) (report of subordinate legislation scrutiny committee), the subordinate legislation can be made by being signed by the authorised person (clause 67(1)). Any subordinate legislation made in this way is subject to the negative procedure provided by subsections (3) to (7) of clause 68.

  14.    The Committee considers that it is difficult to see how Parliament can create a Welsh Assembly without granting it delegated powers and providing for a mechanism to scrutinise those powers. The Committee considers the proposed mechanism for scrutiny, which, save in cases of urgency, always requires both a cost-benefit appraisal and the affirmative procedure, is suitably rigorous.

New powers conferred on Assembly

  15.    Clause 28 confers on the Assembly power by order to reform Welsh health authorities and clause 29 gives similar power in relation to the bodies specified in Schedule 3 (and these cover a wide range of activities). It is significant for the future that both these powers include Henry VIII provisions (clause 28(9) and 29(7)). Clause 113 (relations with local government) allows the Assembly by order to extend that clause to relations with other authorities. Clause 122 allows the Assembly by order to provide a list of equivalent terms in Welsh and English for use in interpreting subordinate legislation made by the Assembly. These are the only new delegated legislative powers given to the Assembly under the Bill. The Committee considers that they are powers which can properly be delegated to the Assembly; the fact that all Assembly subordinate legislation requires approval by resolution of the Assembly provides appropriate control.

  16.    The new powers granted to the Assembly should also be considered in the context of further checks on the exercise of those powers. Clause 110 deserves special mention because it is a fetter on the power of the Assembly to make subordinate legislation. Clauses 108 and 112 also provide a check on the Assembly's powers. Clause 108 prohibits the Assembly from doing anything which is incompatible with European Community law or with the rights in the European Convention on Human Rights which are incorporated into UK law. Clause 112 gives courts and tribunals power to limit the retrospective effect of decisions that the Assembly has acted beyond its powers to make subordinate legislation.


  17.    The Committee wishes to draw to the special attention of the House its comments on the provisions transferring the exercise of existing legislative powers to the Assembly and the new legislative powers conferred on the Assembly. It also draws to the attention of the House the exceptionally large number of Henry VIII powers in the Bill. There is nothing else in the Bill which the Committee wishes to draw to the attention of the House.



  18.    This Bill is intended to protect "whistleblowers" from victimisation. It operates by way of amendments to the Employment Rights Act 1996. Clause 1 inserts 11 new sections of which the first two provide definitions of "protected disclosure" and "qualifying disclosure". A "qualifying disclosure" is a "protected" disclosure if made in accordance with new sections 43C to 43H.

Section 43F (clause 1)

  19.    One of the forms of disclosure that are protected is disclosure to a person prescribed under section 43F. The section provides for the Secretary of State to make regulations prescribing persons or descriptions of persons and the descriptions of matters in respect of which they are prescribed. Regulations are subject to negative procedure (section 236(2) of the 1996 Act), which the Committee considers provides the appropriate degree of parliamentary control.

Section 127B (clause 8(4))

  20.    Section 127B applies where a worker has been dismissed for making a protected disclosure. Subsection (2) allows the Secretary of State to make regulations providing increased awards "calculated in such manner as may be prescribed by the regulations". Regulations are subject to negative procedure (section 236(2)). It is apparently the intention to follow the compensation model currently available for health and safety disclosure.[2]

Other Powers

  21.    There is a simple commencement power in clause 18(3) and clause 17 is a familiar provision about making corresponding provision for Northern Ireland.


  22.    There is nothing in the Bill which the Committee wishes to draw to the attention of the House.



  23.    There are no delegated legislative powers in these Bills.

See the Memorandum by the President of the Council printed in Appendix 1 to the 27th Report of the Joint Committee on Statutory Instruments (HL Paper 88). Back

2   According to the Minister of State, Department of Trade and Industry, speaking at Report Stage in the Commons (House of Commons Hansard 24th April, col 1137). Back

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